In This Section

James Schouler

Delivered at the American Historical Association’s 1897 annual meeting in Cleveland. Published in Annual Report of the American Historical Association, 1897, 21–34.

A New Federal Convention

I feel deeply the honor of being chosen president of this association for the current year; and my sense of your confidence is all the greater since I am commissioned to lead the flock from the familiar pastures on the Atlantic declivity into this broad valley of the Mississippi. Surely, however, with the hearty welcome we have received, we can not long feel strange, any of us, in this charming and hospitable city, nor in this great State of Ohio, firstborn of the present century, and the first of those flourishing commonwealths which were reared in the vast Northwest Territory consecrated by the Ordinance of Freedom.

The past year of our association has been a progressive one, largely through the energy of one of our associates, Hon. Peter White, of Michigan, its membership has been increased by over 300 new and desirable names, so that the printed roll for 1897 now brings the active total to 928, which is half as large again, I believe, as the aggregate of any former year. To offset somewhat this substantial gain, we have lost the usual percentage by resignation and death. Twelve honorable names have been transferred to the list of deceased members since our last annual gathering: Caleb B. Bradlee, George S. Hale, and William Rice, of Massachusetts; J. Hammond Trumbull and Rowland B. Lacey, of Connecticut; William S. Baker, of Pennsylvania; Judge William W. Crump, of Virginia; D. W. Jackson, of Illinois; Henry Kelling, of the State of Washington; Hon. Horatio King, of Washington City, once Postmaster-General of the United States, and that loyal soldier and scholar of international fame, Gen. Francis C. Walker, at whose funeral and later memorial tribute at Boston this association was represented. But the death, the latest of all, which perhaps most comes to us with the peculiar sense of a bereavement is that of Justin Winsor, of Massachusetts. Renowned as a scholar, a man of broad views and strong personality, such as draws a large circle of constant admirers, he was in every sense one of our most active and useful members. As one of the originators of this association, named in its act of incorporation, he passed quickly through the grades of vice-president and president, after which, as a permanent member of the council, he maintained to the last his personal interest in the society, attending most of the annual meetings, including that held in New York last December. Our organization mourns his loss in common with others of a kindred character, for few men, if any, of his generation were so admirably qualified or so greatly sought after to preside over a learned assembly; be not only presided, but inspired by his helpfulness. And whether in historical production or the handling and arrangement of the two vast libraries at Boston and Cambridge, which be directed in succession, the grand achievement of his life was to lay open the treasures of learning in the amplest measure for all who loved to explore and investigate.

I have chosen, for my special subject on this occasion,

A NEW FEDERAL CONVENTION.

More than a century ago, when the first compact of American Union had proved inadequate to its ends, and the amendment of that compact by the unanimous consent of the thirteen states was found impossible, our forefathers made appeal to a general convention. It was their last resort; a drastic remedy, and yet the only one for the political ills they suffered. Well might a minority of the people, averse to radical change, still clinging to State sovereignty and the Confederate idea, have dreaded such a gathering; for from the throes of that general convention which met in 1787 at Philadelphia issued a newborn nation. There was in those days something ominous, something revolutionary, in the very word “Convention” It was the “Convention” that in France, not long after, held the torch to anarchy and misrule. On this continent, conventions in the several States had lately cast off the cords of colonial dependence and organized new republics. Of social, religious, or business conventions, such as posterity has grown familiar with, little was then known in a local and far less in a national sense. That political or party convention which in our own age puts forth platforms and candidates, had as yet no being; and by “Convention” was meant, rather, in the eighteenth-century parlance, a solemn gathering of the people’s representatives; an assembly from the depths, freshly chosen, to change and supplant existing institutions. For that supreme function of the body politic our Declaration of 1776 had in the name of all the American colonies given warrant, by announcing that “whenever any form of government becomes destructive of its fundamental ends, it is the right of the people to alter or abolish it, and to institute a new government.” That basic right was by 1787 fully recognized. Commonwealths like Virginia relied with confidence upon that popular fundamental right implied for future exercise, without the shadow of a written suggestion in the State instrument itself as to how practically it should in the future be amended.

What, therefore, the people of our several States might fundamentally ordain for altering the local organic law whenever needful, the good people collectively of these United States had equally an inherent right under Confederate safeguards to accomplish. Yet in this expanded sense the convention of Philadelphia was a novelty, and continues such to this day. State conventions have since met to frame and submit new amendments, new constitutions, but a Federal convention never again. Prior to 1787, and throughout the long and agonizing contest with Great Britain, the Continental Congress had been for these United States the only real convention. Congress was the convention throughout that long struggle, and the convention was Congress. Doubtless the sublime fame of Washington as commander in chief shone out the more resplendent in that simpler age because, in his own military person, he was throughout the Revolution the sole embodiment of a Federal Executive, to contrast with that single chamber, assembled as a legislature behind closed doors, that commissioned and controlled him. How different the aspect in our late civil war, when, under our reconstructed Federal system, we saw the fame of the greatest generals in the field eclipsed, partially at least, by that of a President of the United States, whose official guidance in full panoply, as political and military leader of the people, made him pre-eminent above all subordinate warriors or statesmen who cooperated in his success.

In a national sense, then, the convention of 1787 stands alone in our annals. Yet during the long intervening years, America has seen that marvellous scheme of united government extending its scope over a continental area and population such as the fathers could scarcely have conceived. From thirteen original States in 1787 and earlier, this American Union has grown in little more than a century to forty-five, and from a population of less than four millions to some sixty-five millions. And yet with all this wonderful increase of the nation in area and numbers, not only has revision of our Federal instrument been constantly wanting, since that first completion of the convention plan by the States adopting it, which was formulated in the first ten amendments, but for specific improvement in the plan there is absolutely nothing to show, save for two casual corrections in detail, which after the space of sixty years were followed by the three famous freedom amendments of civil war, written indelibly in blood.

One might almost suppose that constructive statesmanship, in a Federal sense, ceased with the eighteenth century; but when we turn to the experience of States and to State organic law, we are taught a different lesson. There we see the American political mind and American ingenuity still at work; and the spirit of organic change and improvement strong, constant, and irresistible. There we perceive new constitutional amendments, new organic instruments, proposed and adopted for States both old and new, until at the present time Massachusetts, alone among the thirteen original commonwealths, preserves a constitution of earlier date than our Federal instrument; and even that constitution is so patched with amendments that little of the original garment remains visible. From this State point of view we discover that America has advanced far beyond the age that gave birth to our Federal Constitution in ideas of practical self-government. Admirable, no doubt, was that common scheme, and high advanced in humane ideas; and in the general adjustment, as between State and Federal authority, as well as in the general poise of the three great departments, it can hardly yet be improved. Nor did the delegates who sat at Philadelphia show sound wisdom in any provision more than in that which allowed representation in the House of Representatives and in the choice of President to be shaped and regulated as opinion in the several States might conduct. For thus, as Mr. Bryce well observes, has a Federal scheme, of Government through State regulation of the voting franchise been gently moulded into a democracy, which equally well might have frozen into an aristocracy. But what our generation may claim by way of criticising this famous instrument is, that States have developed organic improvements of practical detail in government to suit our modern society, which well deserve to be nationalized.

Thus, a century or more ago all was “representation,” “representative government;” we worshiped delegates—the legislature. “Taxation without representation,” or, in other words, without the sanction of each colonial House of Commons, was the chief grievance that led to revolt against the mother country. But our later achievement of independence has been to establish, that all departments of American government rest fundamentally upon popular sanction, and that of these departments the legislature is but one. Contrast, if you will, the omnipotence of our political representatives, as first sent timidly out to legislature or convention, to manage the cause for the people a hundred years ago, with representatives under the constraints of our present State instruments. Take the Union through to-day and it is the referendum that gains constantly the upper hand. A hundred years ago suffrage and officeholding were much restrained throughout the Union on considerations of property, race, or religion; to-day there is scarcely a written disqualification placed upon the voter or officeholder in our States, except it be for crime or illiteracy. A hundred years ago the unfiltered choice of the whole people for President was deemed so dangerous a thing that a college of electors was created as the only rational alternative to a choice by Congress; department heads in a State, and State governors, moreover, were largely the choice of the legislators; to-day that electoral college for President is a mere registering machine, while the people assume the right, besides, to choose all the high functionaries of a State, executive or judicial, as well as their representatives and town or county officers as formerly. A hundred years ago a constitution was usually set in operation by the State convention; but in these days it is very rare that any new State instrument, or an organic amendment even, does not take effect by the direct suffrage of the voters; voters choose to the convention and they pass upon the convention product afterwards. A hundred years ago popular control of the third department, the judiciary, was forefended by appointment during good behavior, through legislature or governor; to-day the American rule—be it better or worse—favors a judiciary and court officers who shall be chosen at the polls for a fixed term of years. A hundred years ago the Senate or conservative branch of the legislature was placed beyond the direct reach of the voter, as much as possible, by various ingenious devices; to-day the people choose public agents in the one branch or the other in every State. A hundred years ago Americans were lenient to their representatives and trusted a delegated discretion to the utmost; but since then they have grown wiser than their servants, and not only incline to hamper legislation fundamentally, but so far as possible for the public convenience they wish to keep the legislature itself adjourned and out of temptation. While thus our Federal instrument has yielded but little to structural reform for more than a hundred years, the restlessness, the spirit of change, the activity and anxiety of our American life, now find full scope in improving, if not in radically changing, State and municipal methods. From simply a republican people we are fast growing into a confident and overruling democracy. And not content with selecting our own public agents, we incline as principal to reserve some ultimate determination to ourselves in the public business.

I have said that no Federal convention, for the merest revision, even, of our general system, has met since 1787. But something like an approach to such revision occurred in 1861, when leaders of the cotton States, experienced in national councils, undertook to organize at Montgomery a Southern Confederacy. In closely adapting the constitution of the old Union to their united wants they made various changes in the Federal mechanism, some of which we might, I think, judiciously copy. I shall not here provoke discussion of a cause overwhelmingly defeated, but merely emphasize by such a reference the fact that a body of men, ripe in public experience, can hardly, in this modern age, apply their minds together to our Federal scheme without discovering, from State example, alone, some parts of that system that are worth amending.

First of all, in the very methods pointed out for organic change we see in that Federal instrument imperfection. The door of amendment for so prodigious a system of Union may well prove difficult to open; nor do I deem it so practical an objection as many do that ratification of every Federal amendment by three fourths rather than two-thirds of the States is there enjoined, since experience shows that a basic change to which a decided majority of the States is once strongly committed will readily widen its impulsion to a greater number. But a more serious difficulty appears in the initiation of Federal amendments. Here, we find, there may be either initiation by States or initiation by Congress. Whenever two-thirds of the States, through their several legislatures, propose a convention, Congress must call it; and the danger then arises that changes so crude, so numerous, and so incongruous might proceed from any plenary convention of the kind, not intent upon gaining some special end, that the American people would run the instant risk of being launched, at length, into a worse rather than a better government. To this the alternative is that Congress shall by its own two-thirds vote of both Houses, propose specific amendments; and such, hitherto in our annals, has proved the only acceptable course for initiating organic change. But how can we expect both Houses of Congress to unite readily by such a vote in proposing amendments, however salutary, which would cut down the patronage and influence of either branch? Should, then, a convention be ever compelled by States under the former method, it would be well for those States in concert to frame concrete propositions of amendment carefully in advance, and for any Federal convention, moreover, to put forth propositions for a separate vote, so that all need not stand or fall together; for thus may the people, in passing upon the whole work, sustain the good and repel the bad. More than this, it would be well if our Constitution clearly authorized a limited general convention; and here we note that the Montgomery plan of 1861 made it obligatory on the Confederate congress, whenever a certain number of States concurred in proposing specific changes, to summon a Federal convention, which should consider and act upon the specific proposals alone.

Now, to subject to criticism the first and chief topic of our Federal Constitution—the legislature—our modern, American age may fairly ask, by way of specific change, that Senators of the United States be chosen by the people of a State at large. Such a change would conform to general political usage at this day, and State voters may well feel that a fundamental right is denied them so long as their representatives in either branch of Congress continue to be chosen otherwise than at the polls. That legislative practice, though originally commendable, proves pernicious in the course of a century. ... Even now, little as we may hope to carry such an amendment through Congress for constitutional proposal by both branches, we may concentrate public attention upon Senatorial candidates pending each new canvass for the legislature which chooses. Such an example was set in the famous campaign of Lincoln and Douglas in Illinois, and I recall the expression of one of our State constitutions, framed since the civil war, which permits the people to vote their preference for United States Senator at the election of the choosing representatives, and declares that all such votes shall be tabulated and registered officially in the same connection.1 By some such means, should no better remedy offer, our people may hope to circumvent, if not change, the written law of the Union in years to come as they have already circumvented the Electoral College in the choice of President.

Next, to consider improved modes of Federal legislation. On all subjects within the scope of Federal authority Congress may enact by the bare majority of a quorum in both Houses unless the President chooses to arrest the measure at its final stage by his official veto. Such is and has always been the rule of our present Federal establishment. But this by no means conforms to later State usage, as shown in State constitutions. On the contrary, our American tendency is clearly to interpose greater barriers to legislation, on some topics at least, than the majority will of a bare quorum in each chamber. The number of States increases constantly where the fundamental requirement for the passage of all new legislation, or at least the most important part of it, is a majority of all elected to either branch. Nor to depend too much in a republic upon the Executive veto (a recourse which gains in popularity as time goes on, and yet might fail us) our State constitutions in various in stances constrain the legislature in its own original action by insisting upon a larger fraction to pass the measure than any mere majority. To apply such a rule in amending our Federal instrument, a two-thirds vote in each branch of Congress might, perhaps, be insisted upon, in borrowing and pledging the public credit beyond a certain limit, in changing the currency, or so as to restrain unlimited appropriations or the declaration of war. Under the Montgomery constitution, to which I have alluded, the Confederate Congress could not appropriate money, except by a two-thirds vote, unless the appropriation had been asked by an executive department, or was for the expressed contingencies of Congress, or for some private claim already judicially established in the Court of Claims.

In no respect, as it seems to me, is it plainer that more than our present bare majorities of a quorum should be required, than in such momentous legislation as disturbs our national equilibrium by admitting new States into the Union or by sanctioning the acquisition of alien territory with an alien population. In the latter respect we seem simply to have gone forward without clear warrant from our Federal charter at all. When President Jefferson gained by treaty the great Louisiana purchase, extending the Union by nearly half a continent, he candidly confessed his belief that a permissive amendment to the Constitution would be needful; but yielding his views to those of his party friends, he made for these United States the first real precedent of foreign annexation by treaty. Public approval here resolved whatever doubts might have arisen, and the Precedent was repeated, under Monroe as a successor, when Florida was purchased from Spain. Both acquisitions were peaceful and honorable. ...

No readjustment or change under our Federal compact seems needful as concerns the general powers of Congress or of the Federal Government. In that respect, certainly, the fathers were eminently judicious; and all that posterity can yet do is to bring some suggested changes into the forum of discussion. It need not be thought surprising that men of some party affiliations may wish Congress prohibited altogether from allowing bounties or extra compensation, or from appropriating for internal improvement, or from passing tariff acts of a protective character, while those of some opposing sect will welcome broad paternalism. National divorce laws and a divorce system may on some grounds be highly desirable, yet Congress could hardly pass a bill on that subject which would not be thought too lax in some States and too strict in others. To turn from express powers to the express prohibitions of our present Constitution, it is curious to observe that, while in 1787 our Southern staple raisers caused the denial to the Union of all right to levy export duties on American products—whence it happens that our customs-revenue system is always one-handed—the posterity of those planters expressly authorized such a tax when creating the Southern Confederacy (though under the constraint of a two-thirds vote), and hoped much financially for their cause from such a revenue. Would it be possible, then, to remove at this late day that express prohibition of our Federal instrument? On the other hand, there are prohibitions which deserve to be added to those already manifest, in the organic text. For my own part, there is one express prohibition to the States which I would wish to see literally extended to the Union, so as to make positive and comprehensive what our people long supposed was the fundamental effect, and that is, equally with the States, to forbid the United States to emit bills of credit, make anything but gold and silver coin a tender in payment of debts, or pass any law impairing the obligation of contracts.

Among miscellaneous clogs upon legislation that we find to-day in State organic law some might perhaps be fairly fitted to Congress. Thus, appropriation bills shall contain no “riders,” no extraneous provisions; no law shall be passed on the day set for adjournment, but bills may then be enrolled; on some designated date all acts of the session not otherwise fixed expressly in point of time shall take effect, and all retrospective laws are forbidden.

To pass to the Executive: the foremost change of all to be desired in this department of Federal administration is in the mode of electing our Chief Magistrate. In these days, governors of the States are chosen once and finally at the ballot box, and where no one is found on the official count to have received a majority of the popular vote, a plurality almost universally decides the result. For political experience teaches plainly that the highest candidate among several should come in, rather than have repeated contests at the polls or refer the test to any umpire. But here the fundamental law of our Presidential elections is altogether redolent of the eighteenth century. In the first place, popular elections elect only an electoral college, and next, where no candidate for President receives an aggregate majority vote in those colleges, a plurality effects nothing, and the right of final selection reverts to Congress, or rather to a House of Representatives whose term has nearly ran out. Nothing can be more obnoxious to modern American sentiment, more unpopular. Until the people’s will shall sufficiently establish the title and legitimacy of each Chief Executive, hidden perils are liable at every new four years’ encounter. As for changing the present term of the Presidential office, opinions will differ. The Montgomery government set up a tenure of six years without reelection instead, but a large part of our people are doubtless well satisfied to leave the Presidential term as the fathers fixed it, with full right of reelection. For the time, moreover, of entering upon the duties of Chief Magistrate, and so correspondingly for the commencement of each successive Congress, our historical 4th of March became originally set by a casualty of legislation; that date ought, as it seems to me, to be shifted backward, and certainly not forward. And here again it is worth mentioning that, in the calendar of the Montgomery establishment, Washington’s birthday, the 22d of February was substituted.

Nothing perhaps in our constitutional system has more generally commended itself in a national sense, or has been more widely copied by States, than lodging vast power in the hands of a Chief Executive, to offset that of the legislature. For if Congress must be considered as the assembled representatives of our people, arranged by States or constituencies, the President is himself the representative of the whole people, chosen differently, and responsible after his different fashion. In other words, executive and legislature act each as an important check upon the other. Thus the President’s veto, which forces high argument, reconsideration, and a two-thirds vote to carry an act of legislation against his judgment, gains great favor in the States; for here the Executive stands forth a tribune of the people. State example, indeed, might induce us at the present day to enlarge that function of the President, by basic amendment, so as to allow him at discretion to veto separate items of an appropriation bill while approving the rest, or so as to leave him thirty days after the close of each session, to decide whether to approve or disapprove measures, instead of crowding his discretion in the last confusing hours before adjournment.

Impeachment, I may further add, as a means of punishing civil officers, Federal or State, is now almost a bygone remedy, for our modern legislature is too busy with other affairs to organize and sit as a court of justice, and the ends of justice are liable, moreover, to defeat where political interest is strong. States set now-a-days the example of a summary removal of civil subordinates by the legislature or executive on a two-thirds or three-fourths vote in each house. Or if such subordinate be thought guilty of crime, he may be prosecuted in the courts under the usual safeguards of a trial, and, if found guilty, disqualification from office may be entered as part of the sentence. Impeachment in practice, under our Federal Constitution, has been found mainly useful only for getting rid of some incumbent of the inferior courts whose honorable tenure of good behavior is justly forfeited by some offense not political.

God’s kingdom is perfect in type; God’s laws are unchangeable. The same human organism that received into its nostrils the breath of life, the spark of divine essence, still walks the earth fashioned physically as in the first historic age. But man’s conceptions seek to fathom the mind of his Creator, and whatever he may invent, be it in matter or spirit, his first rude result yields gradually to a better sense of utility. How different the earliest printing press, the first steam engine of civilization, from the latest combined product of human brains that incubate in succession upon the novel idea! So is it, too, in human government. Politics is properly an induction. The philosophic mind when once aroused seeks ever how to conform by change and improvement the institutions of society to God’s perfect plan. These are the pillars modeled by our Divine Architect, who teaches mankind to imitate in all things. There is no real statesmanship which is not conservative of whatever is good in past results, nor is there real statesmanship which is not on the whole progressive. “Applaud us when we run,” says Burke, “console us when we fall; cheer us when we recover; but let us pass on—for God’s sake, let us pass on.”

America at the present day, our own loved Union, is full freighted with the highest hopes of democracy, of government by the people, for the whole human race. Our birthright is great and imposes a great responsibility; but prophecy has denounced the doom of those who cast away the law of the Lord of Hosts: “Their root shall be as rottenness and their blossom shall go up as dust.” Nor is it in righteous laws alone that a nation advances vigorously; but they who administer its concerns in a republic must be well chosen, and they who choose must encompass all rulers, all administration, with their own ceaseless vigilance.

In geographical site and supremacy on this new hemisphere, and in the knowledge of self-government at the start, were grand advantages for this American mission to society. Foreigners said long ago that there was less philosophy among our people but a better application of it than anywhere else. Perhaps it should better be said that we have a philosophy of common sense clear enough to ourselves to be applied for immediate ends. No intelligence can on the whole be so safe for public guidance in affairs as that of millions of intelligent and honest freemen. For the wisest of statesmen in his own conceit is like the captain of a vessel who sets his helm by the compass, and seeks, in disregard of wind or weather, to reach port by a straight line. The true politician, it has well been said, is rather “the philosopher in action,” who finds proper means to public ends and employs them with effect.

Our written systems of government, State and Federal, our organic institutions, are excellent. They furnish their own patterns of expression. Other communities, in the New World or the Old, may copy and adapt as they choose. Under them we are kings, kings by right of the majority, if we do but know it. No citizen need despond, nor suffer from tyranny, if he uses well the franchise bestowed upon him and fulfils his political duty. But good government is not a gratuity, for every citizen, high or low, owes something to the public subtracted from his private concerns and attention. Just as we see contemporary nations of Europe, with their vast standing armies, forcing able-bodied youth to give some years of his life to military service, so in our peace-loving Union opinion may well press conscripts or volunteers, as the case may be, into the public cause in early manhood, and teach men how to become, if not useful officials, useful voters. Public service, at all events, is not summed up in salaries and spoils, nor is true patriotism measured by a pension. Our young men should be taught that the organizing skill which masses for corporate effect in the mammon of unrighteousness may well be employed against bad politics and politicians; that political parties in this laud of freedom are not immortal, but new measures, new policies of administration, invite new bands of believers; that, however it may be, with the creed of a religion, there are no fixed fundamentals in politics except those on which men of all parties may in a great emergency stand together; that true representative government is a government of laws, not of men, and far less of machinery; and that where conventions and primaries, which are, properly speaking, the mere convenient agencies of the voters, become too masterful in the hands of evil managers, it is time to revoke those agencies and direct that nominations be made more immediately by the people themselves. Finally the true “Monroe doctrine” for the New World, as originally formulated by capable statesmen, was not for conquest but for self-conquest; that we should set before the poor and suffering communities of this New World, less favored than ourselves, the shield and spectacle of a noble national example.

For us here assembled, friends and fellow-members, it is an inspiring thought that, as education is the great public factor relied upon in this Union to lift our whole community to a just exercise of the franchise of freedom, so we ourselves, whose privilege it is to have gained the higher education, may by the right use of superior attainments and opportunity become in some sense the guides and teachers of society, and give right ideas and the right impulse to popular institutions. Not, indeed, that we should draw off as an exclusive aristocracy nor stand apart as a set—a remnant, so to speak, in the midst of dissolution; but rather that university men may light up by their superior radiance the devious course of republican empire, beset by snares and pitfalls, and leaven the immense and increasing mass of our political society by their wholesome influence.

James Schouler (1839–1920) was a lawyer and historian. He lectured at Boston University School of Law, the National University Law School and Johns Hopkins University.